So what exactly is expert determination and how does it differ from other methods?

This is one of a number of private dispute resolution methods collectively referred to as alternative dispute resolution (ADR). Other ADR methods include arbitration and mediation.

In expert determination an independent expert is asked by the disputing parties to decide one or more issues between them. The experts are required to use their knowledge and experience to reach a decision based on their own investigation of the issues. The experts must act fairly and the parties must agree to be bound by the decision.

In England and Wales arbitration is supported and controlled by the Arbitration Act 1996, which supports the enforceability of arbitration awards locally and internationally. There is no similar statutory involvement in expert determination.

In arbitration, fairness is formalised by the Arbitration Act. The arbitrator can only undertake an investigation if permitted by the parties and must share the results with the parties. Unlike the arbitrator, the expert is not immune from actions for negligence. In mediation, the mediator helps the parties arrive at their own settlement.

Are there particular types of dispute that suit expert determination?

Expert determinations tend to be applied to technical disputes. The expert is usually chosen for their expertise. The types of dispute for an accountant acting as expert include: share/business valuation disputes; disputes in relation to completion accounts; deferred consideration disputes following a sale of a business; profit share disputes in partnerships and joint venture agreements; and disputes about the loss of profits from breach of contract.

There can be numerous subsidiary disputes in connection with facts and the interpretation of words, which may be outside the expertise of the expert.

Together with other procedural considerations, the expert may need to agree arrangements to enable these matters to be dealt with in a way that does not lead to the validity of his award in respect of the substantive issue(s) being undermined.

How are appointments as expert made and what happens if no agreement can be reached?

A dispute resolution clause may be included in a contract, for example in a sale and purchase agreement for a company, which requires that an expert is appointed to resolve the dispute by expert determination.

If the parties to the agreement have not named the expert, or they are unable to agree on an expert, the contract may provide that the appointment is made by the president of a particular professional body from among its members.

Alternatively, there may be no pre-existing contractual provision for the appointment of an expert to determine the dispute. The parties may decide to use expert determination to solve the dispute.

How does the whole process work and what can the parties expect in terms of fees?

The initial stage of an expert determination assignment involves completion of the engagement formalities and agreement of the expert’s powers. The expert will check whether these are sufficient and, if not, seek to agree those necessary to fulfil their mandate.

The expert will usually issue directions in relation to disclosure of documentation and exchange of submissions including content, sequence and timing.

It is not unusual for further procedural issues to emerge as the matter proceeds.

These may include: defining the issue(s) for determination; dealing with delay on the part of a party; and dealing with abuse of the established process generally.

The written decision of the expert may be by letter to the parties, or in some other form of notice. In arbitration, accompanying reasons for the decision are a requirement, subject to the parties choosing otherwise. In contrast, in expert determination, unless it is agreed that they are required, the expert need not give reasons.

In arbitration, unless the parties agree otherwise, the arbitrator is required to deal with their costs and is empowered to award interest. In contrast, in expert determination these matters may not be within the agreed brief. In any event, it may only be the allocation of the expert’s fees which are in issue as far as the expert is concerned. Alternatively, the parties may have agreed to share these costs.

How much does the whole process cost and how does it compare with other methods?

In expert determination there may be no hearing, reduced disclosure (being disclosure necessary to meet the expert’s requirements), relatively little legal representation required if any, and no reasons given with the award. As a consequence expert determination is likely to be significantly cheaper than litigation. Due to the less formal structure of expert determination, subject to the agreed arbitration process, it can similarly be cheaper than arbitration.

Source: ITweek, UK. Daniel Djanogly is a partner at Kingston Smith LLP.

“This new course is a unique opportunity for participants to gain insight into the different stages of any amicable dispute resolution procedure. Bringing together individuals from widely diverse professional and cultural backgrounds, the training creates an exceptional forum for exchanging experience and viewpoints,” said Melanie Meilhac, Manager, ICC (International Chamber of Commerce) Dispute Resolution Services.

ICC’s (International Chamber of Commerce) first ADR training session, held in Paris last April, attracted participants from 15 countries, reflecting the increased attention that the international legal community is giving to mediation and other methods of dispute resolution.

In recognition of the growing importance of the Asia Pacific region to ICC (International Chamber of Commerce) Dispute Resolution Services and the ICC (International Chamber of Commerce) International Court of Arbitration, ICC (International Chamber of Commerce) announced last week that it would open a branch of the Secretariat of the Court in Hong Kong with a case management team to administer cases in the region under the ICC (International Chamber of Commerce) Rules of Arbitration. ICC (International Chamber of Commerce) will locate the Director, ICC (International Chamber of Commerce) Arbitration and Amicable Dispute Resolution Asia in Singapore, where it will open a liaison office dedicated to ICC (International Chamber of Commerce) Dispute Resolution Services.

ADR operates under a set of rules that leaves parties free to choose the technique best suited to the circumstances. In addition to learning about mediation, participants in the new interactive course will become familiar with other amicable methods, such as neutral evaluation and mini-trial.

I. Conciliation
Either party may demand conciliation. The demand for conciliation is made by letter, fax or Internet. Within 10 workdays, and once the administrative costs have been covered, the other party (parties) is (are) advised of this demand for conciliation. The applicant is notified of any response or reaction by the other party. If the case reveals a serious difficulty the parties may, in that event, call for an expert or a mediator to be appointed, so as to avoid litigation. After one month or when the conciliation fails, either party may initiate arbitration proceedings.

II. Expertise and Mediation
All the parties may demand, together, in writing, for an expert or mediator. Within 15 workdays, and once the administrative costs have been covered, an expert or a mediator will be appointed. Each party bears the costs thereof for equal parts. Within 30 days after the appointment, the expert or mediator shall meet the parties and, within 3 months, he shall make a compromise or give a report with a clear opinion.

III. Arbitration
Before initiating arbitration in the first instance parties are obliged to make an attempt at conciliation every time the law imposes it.

Art. 1: General
Arbitration has, since 1958, been an internationally recognized procedure (convention of New York). Unless otherwise agreed between the parties, only the laws of the country of the clerk’s office of the Court shall apply. The law applies to all that is not expressly stipulated in these rules.

Art. 2: Jurisdiction
Parties who had not foreseen an arbitration clause, may, after a dispute has arisen, conclude a contract thereto. An arbitration agreement must be incorporated in a document signed by both parties or in other legally binding documents. Disputes which cannot be legally submitted for arbitration shall be inadmissible. If one party refuses to take part in the proceedings or does not present its arguments within the stipulated time limit, the dispute will be heard anyway and an award shall be pronounced.

Either party may petition the judge to seek conservatory or provisional measures. This does not imply that this party waives the arbitration agreement. Also if suddenly a dispute or a protest arises after the obtaining of an enforcement ordinance, the claim shall be settled by arbitration only.

Art. 3:
In order to begin arbitration proceedings, the requesting party is required to send a registered ‘notification of arbitration’ (a) to the opposing party, as well as a ‘request’ (b) by registered letter to the secretariat referring to the arbitration clause.
In principle, the procedure shall take place in writing. Either party is entitled to ask for an audience with debates and to be assisted by or represented by an attorney or mandatory.

a) The notification of arbitration on a formal way invites the opposite party to give its point of view within 15 workdays and contains the same dossier as sent to the secretariat.

b) The request of arbitration is sent to the secretariat together with the notification of arbitration. It contains the complete identity of the parties, an accurate description of the claim (principal, interest, damage …) and a copy of the notification of arbitration with proof of sending to the opposite party.

c) The registration of the dossier by the secretariat is sent by ordinary mail to the parties, within 15 workdays after receipt.
The claimant is invited to pay a deposit estimated by the secretariat for initial costs. If it is not paid within the time limit, the request shall be, ex officio, considered withdrawn. In cases of serious financial difficulties, the secretariat shall ask for a bank security or guarantee or shall reduce or postpone the payment of this deposit.

d) Terms
- Within 15 workdays after receipt of the notification of arbitration, the defendant has to send his point of view (counter claim) and pieces to the claimant, and two copies to the secretariat with proof of sending to the claimant.
- Unless otherwise agreed by the parties, the clerk’s office who’s indicated after expiration of the previous deadline, shall appoint the Arbitral Court and inform the parties within 20 workdays.
- Within 15 workdays after receipt of the defendant’s statement, the claimant must send his final statement and supplementary proofs to the defendant and two copies to the clerk’s office with proof of sending to the opposite party.
- Within 15 workdays after receipt of the claimant’s final statement, the defendant must send his final statement to the claimant and two copies to the clerk’s office with proof of sending to the claimant.
The claimant has no right to reply, unless the defendant submits completely new elements. Only the Arbitral Court can decide about this. Conclusions and documents presented out of the terms fixed, can be kept out of the debates.
The receipts mentioned above are considered to be done, for national sending 3 workdays after the deposit to the post office and for international sending 6 workdays after the deposit to the post office. The contrary shall be proven by the requesting party. The proof of sending is the receipt of the Post Office. The day of sending does not count to calculate the terms.
Parties may foresee or decide to replace the exchange in writing mentioned above by an immediate hearing with debates. In this case it shall take place within one month after the appointment of the Arbitral Court.
The clerk’s office can postpone the proceedings at any time if the amount to cover the proceedings costs has not been paid. One party can request, by means of a well-motivated letter, the shortening or extension of terms. The clerk’s office decides sovereign about this request. The clerk’s office can also extend a term if useful for a good dispatch of the lawsuit. The Arbitral Court can also request the parties to formulate supplementary conclusions concerning one or more points, unclear to it.

e) The award
Within 10 workdays after receipt of the defendant’s final statements or before the hearing, the whole dossier shall be remitted by the clerk’s office to the Arbitral Court.
Within 20 workdays after receipt the dossier, the Arbitral Court shall give a verdict. This term can only be lengthened on motivated request by the Arbitral Court, and the clerk’s office’s approval. Without a verdict within the term and without approved longer term the proceedings are postponed, the clerk’s office will nominate, ex officio, a new Arbitral Court. In this case only Art.3e shall be applicable.

The clerk’s office informs the parties about this award. The award specifies also which party shall pay the procedure bill or in which proportion this charges are divided amongst parties and to whom they shall be paid or reimbursed.
If the defendant neither reacts in the first instance on the notification of arbitration nor responds to the notification of composition of the Arbitral Court, sent by registered letter, a verdict by default shall be pronounced. The Arbitral Court is authorized to declare, ex officio, an award provisionally enforceable and to exclude consignations. The parties undertake to execute the award. The clerk’s office lodges the original award at clerk’s office of the public Court. One party shall obtain the enforcement (exequatur) after homologation.

f) Procedural requirements
- All mailed items between parties shall be sent by registered mail, unless otherwise permitted by the parties and by law. – The documents shall be sent to the secretariat or the clerk’s office by registered mail, duly numbered and in DUPLICATE (QUADRUPLICATE in appeal).
- The clerk’s office is entitled to ask the parties for missing and/or additional copies or to impose an extra administrative charge for the inconvenience thus caused.
- The parties are exempted from the obligation to send their mailed items to the secretariat or the clerk’s office by registered mail provided they send them by e-mail and between the parties provided a mutual agreement after the dispute has arisen.
- The pleadings may, provided all parties agree thereto, be conducted via web- or videoconferencing.

g) International arbitration
The regulation-law of the United Nations (UNCITRAL, 21/06/1985), is applicable, as far as it is supplementary, and not contrary to the legislation of the country of the clerk’s office or to the present rules. If at least one of the disputing parties has its location outside of the European Union, all periods mentioned in Art. 3d) shall be doubled.

h) In case of bankruptcy or death of a party the procedure shall be postponed. On request of one party the procedure shall continue after payment of the costs and giving of the new identity of the parties.

Art. 4: Place and language
The place of the award shall be considered the place of arbitration.
Unless other agreement it shall be the place of the clerk’s office. This may be different from the place of debates which is sovereign chosen by the clerk’s office.
The parties shall choose the language of the proceedings. The proceedings may take place in two languages. In the absence of an agreement, the language(s) of the proceedings is/are that/those of the country of the clerk’s office. All charges for translations shall be paid by the party remitting documents in another language. The verdict is written in the language of the procedure, in accordance with the place of enforcement.

Art. 5: Multipartite arbitration
- Linking of controversies: If between the same parties, there are controversies that are connected or indivisible, the clerk’s office can order to link these controversies, if the parties are bound by the same arbitration clause on binding documents. The linking is not possible if already an award has been taken “before justice has been done” on its merits. – Third party intervention: The parties give to any third party the right to intervene in the proceedings. The third party shall accept by agreement the rules. It is conditional on the assent of the Arbitral Court.

Art. 6: The Arbitral Court
a) The mission: The Arbitral Court decides autonomously, even in cases where one party raises objections, on the competence and existence or validity of the arbitration agreement. The clerk’s office should be informed, at once, of any other decisions of other judicial authorities regarding the unresolved dispute.
The challenging of an arbitrator must be effected in a reasoned request (and by registered mail) to the clerk’s office within 10 days of receiving notification of the composition of the Arbitral Court. The challenged ar¬bitrator is duly advised thereof by the clerk’s office. The challenged arbitrator shall duly resign within 10 workdays or notify the objecting party that (s)he will not be withdrawing. The replacement shall be effected according to the rules governing new appointments. The Arbitral Court may decide autonomously whether to hear the parties (or their mandatory), to summon witnesses and/or to order an on-site inspection and, if appropriate, to appoint external experts whose brief shall be specified in writing. A board member, personally, a secretary, a clerk of the Court or an arbitrator cannot be held liable for their actions within the scope of, or in connection with, the rules. All disputes must be settled only by arbitration.

b) The appointment: Unless the parties have agreed otherwise, the clerk’s office in the first instance shall appoint one arbitrator and three for the appeals court. The parties are prohibited from contacting an arbitrator appointed by the clerk’s office, this under pain of absolute nullity and an order to pay damages to the other party.
If the parties, by mutual agreement, have themselves appointed an Arbitral Court, this Court may, in such a case, assign the duties of the clerk’s office and the appeals level to the Institute of Arbitration.
If an arbitrator dies or is legally impeded, the clerk’s office is in charge of the replacement.

Art. 7: Hoger beroep
Either party has the right to appeal against an award within the time limit of 30 calendar days after the postmarked date of the registered notification of the award of first instance, except if the parties, after the dispute arises, have expressly excluded the appeal level and in this case the award in first instance is not by default.
If the appeal period begins or ends during the legal vacations of the clerk’s office country, said appeal shall be extended until the 15th day of the new calendar year. Once this deadline has expired, it will no longer be possible to make an appeal.

The request for appeal should be sent, by registered mail, to the clerk’s office. On registered request of the clerks’ office the appellant does pay within 15 workdays the registration and the asked advance. The clerk’s office fixes sovereign this advance. If the registration fees and costs are not total paid within 15 workdays, these appeal proceedings shall be deemed to be not existed.
The appeals procedure and terms are the same as the proceedings in first instance (III.Art.3), with the difference that the notification of arbitration is given by the clerk’s office after the registration fees and costs have been paid and that this notification does duty for registration of the arbitration. The Arbitral Appeals Court is composed of three arbitrators.

IV. Costs
The administrative cost for each dossier is maximum 50 EUR (15 EUR if the request is introduced by Internet).

a) Conciliation: For a financial claim the cost is max. 100 EUR. For other disputes see IV b.

b) Expertise or mediation: The cost is limited to half of the arbitration (see IV.c.).

c) Arbitration:

For the registration of the request and the appointment of the Arbitral Court the costs per party for the first instance is 75 EUR and 200 EUR for the appeal level.
The cost for arbitration (clerk’s office & fees) is 100 EUR per hour (min. 1 hour) with a maximum fixed according to the amount of the value of the litigation (main issue and counterclaim, if any): On the:
1st range up to 6.000 EUR: 10%
2nd range from 6.000 EUR up to 12.000 EUR: 8 %
3rd range from 12.000 EUR up to 25.000 EUR: 6 %
4th range from 25.000 EUR up to 125.000 EUR: 3 %
5th range from 125.000 EUR up to 250.000 EUR: 1,5 %
6th range from 250.000 EUR up to 625.000 EUR: 1 %
7th range from 625.000 EUR up to 1.250.000 EUR: 0,5 %
8th range from 1.250.000 EUR and more: 0,25 %
The costs of an award by default about a not contested money claim in the first instance are not due but doubled in appeal or when the Arbitral Court is composed by three arbitrators.

Exceptional expenses.
The Arbitral Court will be condemned, ex officio, to pay an indemnification for the lawyer’s intervention in the procedure, of 400 EUR for the first instance and 800 EUR for the appeal. The expenses provided for audiences, hearing of witnesses, appearing, visits to the scene of the occurrence, translations, supplementary copies, research, corrections and rejection are not included and are estimated separately by the Arbitral Court, and shall be paid by one or more parties. If the value of the controversy cannot be determinate, the clerk’s office will fix the amount needed to cover the retainers and the operating expenses.
Only in cases where the arbitration was stopped before the notification to the parties of the Arbitral Court the costs shall be reduced to the administrative charge.

All travelling expenses and costs resulting from a deviation from these rules are exceptional expenses. All amounts are exclusive of taxes, duties or charges.

V. Standard Dispute Rules
Unless otherwise agreed between the parties, the Institute of Arbitration non-profit organization of Brussels, shall designate the arbitration committee or chamber and the clerk’s office of the Court, which shall be tasked with organizing the arbitration proceedings and monitoring the progress thereof, according to the rules. The clerk’s office means the secretariat of an Arbitration Committee or Chamber.

These Rules are subject to modification at any time. The modifications do not apply to an arbitration which is already pending (‘lis pendens’). The interpretation of the Standard Dispute Rules and of the correct application thereof falls within the competence of the Institute of Arbitration non-profit organisation, Drève Sainte Anne 68b, in 1020 Brussels, +32-(0)70-233.620.

In application from 1 January 2006
Institute of Arbitration Legal registration 1998, 2001, 2004 & D/2004/6878/1

More Information:

Institute of Arbitration
Drève Sainte Anne 68 b
1020 Brussels
E-Mail: info(at)euro-arbitration.org
Tel: +32-(0)70-233.620 (9h-12h)
Fax: +32-(0)70-233.620

All that the student needs is access to the internet with a browser and permission of a faculty member to participate. Schools in Australia, Canada, Ireland, New Zealand, Singapore and the United States have expressed interest so far. For further information about fielding teams or acting as an evaluator, please go to http://www.odr.info/icodr2005.php or contact Alan Gaitenby at gaitenby(at)disputes.net or Benjamin Davis at ben.davis(at)utoledo.edu.

Best regards,

Benjamin Davis
Associate Professor of Law
University of Toledo College of Law
2801 W. Bancroft Street
Toledo, Ohio 43606
Tel.: 1 419 530 5117
Fax: 1 419 530 2439
E-mail:ben.davis(at)utoledo.edu

To participate, law students need only have 1) access to the internet through a browser and 2) permission of a faculty member. The competitions are free of charge. This year we will again have online negotiation, mediation, and arbitration competitions. As a new development we will also hold a prototype online litigation competition.
ICODR Registration (schools and evaluators)
ICODR 2005 Negotiation Competition Rules and Schedule
ICODR 2005 Mediation Competition Rules and Schedule
ICODR 2005 Arbitration Competition Rules and Schedule
ICODR 2005 Prototype Litigation Competition Rules and Schedule

The Process:

Over the past three years we have held online negotiation, mediation, and arbitration competitions between teams from law schools around the world. Law students have opportunities to role play as advocates for claimants and respondents as well as neutrals in each of the competitions. Hypothetical cases used have been designed by law professors or been provided by the Harvard Program on Negotiation. Distinguished professionals from around the world have participated as evaluators.

Through ICODR 2004 ten technologies have been graciously provided free of charge including Online Resolution, West Workspace/Erooms Technology, Squaretrade.com, and several in the eNegotiation group (SimpleNS, MeetingOne, WebNS, The Negotiating Room, and Negoisst, Inspire, Family_Winner, and SmartSettle).

The Hong Kong International Arbitration Centre, the International Chamber of Commerce International Court of Arbitration, the Arbitration and Mediation Centre of the World Intellectual Property Organization, the London Court of International Arbitration, the Permanent Court of Arbitration at the Hague, and the International Centre for Dispute Resolution of the American Arbitration Association have permitted us over the past years to make reference to them when students are appointed neutrals in the arbitration competition ? to help the realism of the experience.

To participate law students express interest through faculty members (i.e. coaches), in each competition team(s) are assigned roles and given hypotheticals to prepare, and then the students participate anonymously by accessing a platform in cyberspace for conducting conflict management.
Student roles in 2005 will be as advocate for their client in the negotiation competition, as advocate for their client or as mediator in the mediation competition, as advocate for their client or arbitrator in the arbitration competition, and as advocate for their client or judge in the prototype litigation competition.

Evaluators have access to the rooms in which the students are acting and can read what the students submit to evaluate the effectiveness of each student team. The most effective teams in each role in each competition are recognized.

Schedules and other information:

Hypotheticals are scheduled to be handed out in early January 2005.
The Online Negotiation competition will be held in two rounds in February and March 2005. Round 1 (February 20-27), Round 2(March 2-5), Results posted April 15.
The Online Mediation competition will be held in two rounds in February 2005. Round 1 (February 6-13), Round 2(February 16-20), Results posted April 15.

The Online Arbitration competition will be held in one round over two months in February and March 2005. Round: February 1 ? March 31, Results posted May 15. Advocates will participate as Claimant in one room and Respondent in another room. To the extent possible student arbitrators will serve in two rooms and – depending on numbers – in arbitral tribunals of 3 members.
The prototype Online Litigation competition will be held over two months in February through April 2005. Round: February 15 ? April 15, Results posted May 15. Advocates will participate as Plaintiff/Claimant in one room and Defendant/Respondent in another room. To the extent possible student judges will serve in two rooms.

West Workspace/Erooms Technology has accepted to be the technology for the ICODR 2005 competitions. To explore a past year of the competition on this platform, please go to

https://www.westworkspace.com/eroom/icodr2003

Username: observer2004
Password: observer2004

If prompted click on browser only
For more information please contact:

Alan Gaitenby
Assistant Director
Center for Information Technology and Dispute Resolution
University of Massachusetts
Amherst, Massachusetts
Tel.: 1 413 577 1394
email: gaitenby@disputes.net

Benjamin Davis
Associate Professor of Law
University of Toledo College of Law
2801 W. Bancroft Street
Toledo, Ohio 43606
Tel.: 1 419 530 5117
Fax: 1 419 530 2439
E-mail:ben.davis(AT)utoled

Copy for the 2003 release is due at the end of March. The book is mainly used in the UK and other commonwealth jurisdictions.

I would welcome any hard news of or advice about these new procedures as they are working out in practice.

Robert Fenwick Elliott
http://www.fenwick-elliott.co.uk”

Year 2003

The expectation is that online technology will speed up and reduce the cost of international arbitration proceedings. It is expected to remove the need for sending large quantities of paper through courier services and replace face-to-face meetings by cheaper and easier online video conferencing. This seminar will ask the question “How realistic are these expectations?”

For the last two years the E-Arbitration-T team of lawyers and technologists have been looking at these issues. A key feature of international arbitration is that it delivers a result – the award – that national courts will recognise and enforce. We cannot simply substitute Internet and computer technology without considering the criteria courts will apply in deciding that the award was made properly and fairly within the intent of relevant international law. This seminar will look at the technological options and the rules and procedures necessary to exploit them. It will also examine the need for change in the international legal framework to reap the full technological benefits.

E-Arbitration-T cannot give an unqualified endorsement of these expectations. We have carried out careful analysis of different options and in some key areas the procedures adopted have much more impact on the speed and cost of dispute resolution than the choice of technology. At the seminar we will present these findings and show where we believe technology can deliver real advantages. The seminar is free-of-charge and is being presented on two alternative dates: Thursday January 16 or Friday January 17.

Programme

9:30 Registration and coffee (SJ004)
10:00 Welcome to DISC at Brunel (SJ008)
A walk through the process
10:15 Electronic transmission of documents
- Getting started with the request and answer
- Exchanging claims, defences and other documents

11:15 Coffee
11:30 Other online support
- Tribunal formation
- Hearings
- Rendering the award
12:45 Lunch (SJ004)
Perspectives
1:45 Managing the proceedings (SJ008)
- Extending the rules
- Specifying the timetable and events
- Other neutral roles
3:00 Coffee (SJ004)
3:15 The legal framework and Harmonisation
3:45 Open discussion
4:30 Close

Practical Arrangements

It will take place in the Department of Information Systems and Computing, The St. John’s Building, Brunel University, Kingston Lane, Uxbridge, UB8 3PH, U.K.

To register to attend contact Julie Eatock, by email fax (+44 1895 251686) or phone (+44 1895 203259) with your name, affiliation and contact details so we can allocate you a place and send you full joining instructions.

Year 2002